These are frequently asked questions about alimony under the Indian Divorce Act, 1869.
Type – II: Write Short Notes on the following (3 M / 4 M / 5 M)
a) Alimony Pendente Lite:
When a couple decides to end their marriage by way of a divorce, there is usually some kind of monetary compensation given by one spouse to the other, so that they are able to maintain the standard of living that they are accustomed to even after the divorce. Such compensation is mandated by law and is ordinarily paid by the spouse who is in a financially stronger position, to the other spouse. After divorce either of the spouse has the right to claim alimony. Though not an absolute right, it can be granted by the court depending upon the circumstances and financial conditions of both the spouses.
Alimony is of two types. First, alimony pendente lite which means alimony during the matrimonial litigation and second permanent alimony which is granted by the Court when passing a decree of divorce or nullity of marriage or restitution of conjugal rights.
Alimony Pendente Lite is a temporary financial support arrangement, or sometimes a court order, from the husband to the wife, during pendency of suit of divorce or judicial separation or nullity of marriage or restitution of conjugal rights. It is granted during the pendency of the suit for divorce or judicial separation or nullity of marriage or restitution of conjugal rights. It is to be paid until the final order is passed in matrimonial suit. It is paid periodically generally every month.
According to Section 36 of the Divorce act, 1869 in any suit under the Act, whether it be instituted by a husband or a wife, and whether or not she has obtained an order of protection the wife may present a petition for alimony pending the suit. Such petition shall be served on the husband; and the court, on being satisfied of the truth of the statements therein contained, may make such order on the husband for payment to the wife of alimony pending the suit as it may deem just: PROVIDED that alimony pending the suit shall in no case exceed one fifth of the husband’s average net income for the three years next preceding the date of the order, and shall continue, in case of a decree for dissolution of marriage or of nullity of marriage, until the decree is made absolute or is confirmed, as the case may be.
b) Permanent Alimony Under the Indian Divorce Act:
When a couple decides to end their marriage by way of a divorce, there is usually some kind of monetary compensation given by one spouse to the other, so that they are able to maintain the standard of living that they are accustomed to even after the divorce. Such compensation is mandated by law and is ordinarily paid by the spouse who is in a financially stronger position, to the other spouse. After divorce either of the spouse has the right to claim alimony. Though not an absolute right, it can be granted by the court depending upon the circumstances and financial conditions of both the spouses.
Alimony is of two types. First, alimony pendente lite which means alimony during the matrimonial litigation and second permanent alimony which is granted by the Court when passing a decree of divorce or nullity of marriage or restitution of conjugal rights.
When the Court passes the final decree for dissolution of a marriage or judicial separation, it may order the husband to pay to the wife, a gross sum money or an annual amount for any term not exceeding the wife’s life, as the Court thinks reasonable. It is granted as a final decree at the conclusion of trial of the suit for dissolution of a marriage or judicial separation. It is payable throughout the lifetime of the wife. It may be paid in lump sum or periodically for instance, annually or monthly.
Under Section 38 of the Divorce act, 1869 the High Court, may, if it thinks fit, on any decree absolute declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, and the District Judge may, if he thinks fit, on the confirmation of any decree of his declaring a marriage to be dissolved, or on any decree of judicial separation obtained by the wife, order that the husband shall, to the satisfaction of the Court, secure to the wife such gross sum of money, or such annual sum of money for any term not exceeding her own life, as, having regard to her fortune (if any), to the ability of the husband, and to the conduct of the parties, it thinks reasonable; and for that purpose may cause a proper instrument to be executed by all necessary parties. This order may be modified in future depending on the changed circumstances.
c) Maintenance under S. 125 of CrPC:
Maintenance under the law is defined as an amount of money paid to a dependent person such as a wife, child or parent so that they can support themselves financially. Section 125 of CrPC is a means to provide a speedy, inexpensive and effective remedy against persons who refuse or neglect their duty to maintain persons dependent on them.
According to Section 125 of CrPC, if any person having sufficient means neglects or refuses to maintain-
(a) his wife, unable to maintain herself, or
(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or
(c) his legitimate or illegitimate child (not being a married daughter) who has attained majority, where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or
(d) his father or mother, unable to maintain himself or herself, a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, father or mother, at such monthly rate not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct.
The maintenance proceedings are not to punish a person for his past neglect, but to prevent vagrancy leading to the commission of crime and starvation by compelling those who can do so to support those who are unable to support themselves and who have a moral claim to support. The provisions of maintenance of the Code of Criminal Procedure are applicable to persons belonging to all religions and have no relationship with the personal laws of the parties. Thus, under this provision, a wife can ask for maintenance irrespective of personal laws.
d) Remarriage under Indian Divorce Act:
The Indian Christian Marriage Act, 1872 is applicable in matter of marriages. According to Section 4 of the Indian Christian Marriage Act, 1872, every marriage between persons, one or both of whom is or are a Christian or Christians can be solemnized under the Act. Remarriage is allowed in Christians subject to provisions of Section 60(2) of the Act. According to Section 60(2) of the Indian Christian Marriage Act, neither of the persons intending to be married shall have a wife or husband still living. Thus, a Christian can remarry if his/her spouse is not living or when there is divorce with his/her spouse and there is no appeal pending against such a decree of divorce in any court. All the requisites of valid marriage are to be satisfied during the remarriage. Sections 57 to 59 of the Act deals with remarriage under the Act.
According to Section 57 of the Act, when six months after the date of an order a High Court confirming the decree for a dissolution of marriage made by a District Judge have expired, or when six months after the date of any decree of a High Court dissolving a marriage have expired, and no appeal has been presented against such decree to the High Court in its appellate jurisdiction, or when any such appeal has been dismissed, or when in the result of any such appeal any marriage is declared to be dissolved, but not sooner, it shall be lawful for the respective parties to the marriage to marry again, as if the prior marriage had been dissolved by death: provided that no appeal to Supreme Court has been presented against any such order or decree.